2018-00246009-CU-PA

David J. Adams vs. William A. Rivera

Nature of Proceeding: Motion for Relief from Default

Filed By: Garcia, Manuel

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Defendants William A. Riviera and Agapito Cardona’s (collectively, “Defendants”) motion to set aside default and default judgment pursuant to CCP § 473(b) is
GRANTED.

Defendants’ request for judicial notice of the default judgments in the Court’s file is granted. (See ROAs 17, 20.)

Plaintiff David J. Adams, Jr. (“Plaintiff”) filed the personal injury complaint in this action on December 6, 2018. According to the Proof of Service of Summons & Complaint filed on January 9, 2019, Mr. Riviera was personally served on January 1, 2019, by a registered California process server. (ROA 7.) Mr. Cardona was served by substituted service on January 1, 2019, by a registered California process server. (ROA 8.)

On an unknown date after both Defendants were served, Defendants advised AFA Claim Services, the third party administrator for Defendants’ insurance carrier, Ocean Harbor Casualty, that they had been served with the Summons and Complaint in this action.

On April 24, 2019, AFA Claims Examiner, Brigette Pecache, sent an email to Plaintiff’s counsel’s office requesting a copy of the Proof of Service of Summons & Complaint, along with a call from Plaintiff’s counsel to discuss settlement. (Pecache Decl., ¶ 4.) At the outset, the Court must note that while Ms. Pecache’s declaration refers to a total of 8 exhibits that are purportedly attached, no exhibits were attached to the copy of the declaration provided to the Court. Primarily, the attachments referenced in Ms. Pecache’s declarations would appear to be copies of email communications by and between Plaintiff’s counsel and herself.)

On May 6, 2019, Ms. Pecache called Plaintiff’s counsel, Jonathan Hayes, and left a follow-up voicemail requesting a call to discuss settlement and copies of Plaintiff’s medical records and bills for review. (Pecache Decl. ¶ 5.) On May 13, 2019, Ms. Pecache followed-up and again requested Plaintiff’s counsel send Plaintiff’s medical bills for review. (Pecache Decl. ¶ 5.) On May 30, 2019, Ms. Pecache sent a follow up email to Plaintiffs counsel’s office again requesting Plaintiff’s medical bills. (Pecache Decl. ¶ 6.)

On June 11, 2019, Plaintiff’s counsel emailed Ms. Pecache advising he would be taking both Defendants’ defaults if the Complaint was not answered within the next ten (10) days. (Pecache Decl. ¶ 7.) Ms. Pecache responded the following day again requesting medical bills with the intention of resolving this action and indicated to

Plaintiff’s counsel that the parties would be able to settle the claim. (Pecache Decl. ¶ 8.)

Plaintiff’s counsel provided medical bills, but no reports, on June 12, 2019. (Pecache Decl. ¶ 9.) Shortly after receiving the medical bills from Plaintiff’s counsel, Ms. Pecache advised her supervisor that she received the medical bills, but no reports. (Pecache Decl. ¶ 9.)

On June 28, 2019, Plaintiff’s counsel emailed Ms. Pecache advising that he would be filing a Request for Default and would provide a copy once received form the Court. (Pecache Decl. ¶ 10.) Anomalously, at this time, default and default judgments had already been entered. Indeed, default and default judgments were entered against each defendant on June 19, 2019 (ROAs 17, 20), roughly 10 days before Plaintiff’s counsel advised he “would be” filing requests for default.

Ms. Pecache declares that during [her] communications with Plaintiff’s counsel she tried to make it very clear that it was her intention to resolve the claim informally with Plaintiff’s counsel and that she repeatedly requested Plaintiff’s medical information to do so. She declares she was extremely surprised that Plaintiff’s counsel had taken Defendants’ defaults on June 19, 2019, two days prior to when Plaintiff’s counsel indicated default would be taken (i.e., June 21, 2019). (Pecache Decl. ¶ 11.)

Defendants now seek to set aside the defaults and default judgments entered against each of them on June 19, 2019, on the grounds of surprise pursuant to the discretionary relief provision of CCP § 473(b). CCP § 473(b) provides that “[t]he court may, upon any terms as may be just, relieve a party … from a judgment, dismissal, order or other proceeding … taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” A motion for relief from judgment under this portion of the section lies within the sound discretion of the trial court. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Defendants argue Ms. Pecache made her intentions clear to Plaintiff’s counsel in numerous emails that she intended to settle the claim upon receipt and review of Plaintiff’s medical bills and records. Putting aside counsel’s statement that he “would file” defaults on June 28, as noted above,

Defendants also contend Plaintiff granted Defendants an extension to June 21, 2019, to file an Answer, but took defaults on June 19, 2019, two days prior to the expiration of the extensions.

Defendants have attached a copy of their proposed Answer to be filed.

Further, Defendants have timely filed within the six-month period as the default and default judgments were entered on June 19, 2019. The discretionary relief provision allows the trial court to set aside, inter alia, a default or a default judgment caused by a party’s “mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b), italics added.) The application for such relief must “be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.) California courts have consistently held that the six-month period to bring a motion to vacate under the discretionary relief provision runs from “the date of entry of default rather than from the date of entry of the default judgment.” (Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 541; Rutan v. Summit Sports, Inc., 173 Cal.App.3d at p. 970; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Once the 6 months expire (if only discretionary relief is sought) the trial court has no power to give the defendant statutory relief. This is so, irrespective of whether the moving party is able to demonstrate mistake, inadvertence, surprise or excusable neglect because the six-month period is jurisdictional. (Manson, Iver & York v. Black, at p. 42; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344-345.)

In opposition, Plaintiff contends Defendants’ attempt to rely on counsel’s filing of the Request for Default two days before June 21, 2019, is disingenuous. Plaintiff argues Defendants had been on notice for approximately four months prior to the defaults being taken that they had a duty to file an Answer while the claim was pending. Specifically, Plaintiff indicates that on February 21, 2019, Plaintiff sent ten day letters to both Defendants, with a courtesy copy to AFA Claims. These letters indicated Defendants were in default and provided Defendants’ insurance carrier with an extension through March 4, 2019, to file an Answer. (Hayes Decl. ¶ 4, Exh. 3.) Plaintiff contends there was no response from the insurance carrier or Defendants to this letter. Plaintiff argues he thus placed the insurer on notice of the need to file an Answer in February of 2019, and again in June of 2019, but the insurer never took the step of engaging counsel and there was no indication from the insurer that it was ever going to Answer. But this ignores the apparent ongoing settlement negotiations. Plaintiff argues despite repeated efforts to get an Answer on file, none was forthcoming, and thus Plaintiff was forced to request default. Plaintiff argues Defendants cannot show they ever intended to, or attempted to, file the Answer within the ten days following Plaintiff’s counsel’s June 11, 2019, email.

Section 473 is to be liberally applied where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. ( Berri v. Rogero (1914) 168 Cal. 736.) In such situations, “very slight evidence will be required to justify a court in setting aside the default.” (Id., at 740.) Because the law strongly favors trial and disposition of cases on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Waite v Southern Pacific Co. (1923) 192 Cal. 467; Maynard v. Brandon (2005) 36 Cal. 4th 364, 371-372.) The trial court has discretion under section 473(b) based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred.

Even assuming Defendants’ insurance carrier never expressly indicated an intention to file an Answer prior to June 21, 2019, or attempted to file an Answer prior to June 19, 2019 (when defaults were actually taken), the fact remains that on June 11, 2019, Plaintiff’s counsel granted Defendants’ an extension through June 21, 2019, to file an Answer, but then took their defaults and default judgments two days prior on June 19, 2019. It is reasonable that Defendants would be surprised by this course of events given that Plaintiff’s counsel had expressly indicated they had ten days as of June 11, 2019, to file an Answer and the parties had been actively engaging in settlement negotiations.

Based on the record before it and in the exercise of its discretion, Defendants’ motion is GRANTED. The defaults and default judgments entered against each defendant on June 19, 2019, are set aside.

Defendants shall file their Answer(s) no later than October 14, 2019.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.